(The decision has been implemented by the Final Rule, 73 Fed. Reg. 76927, effective January 20, 2009.)
The Supreme Court ruled that, when an alien is granted voluntary departure and then seeks to file a motion to reopen, “the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen.” (Emphasis added.) Here, two days before his voluntary departure period expired, the petitioner filed a motion to reopen, along with a motion to withdraw his request for voluntary departure, with the intention of applying for adjustment of status. The Board denied the motion to reopen, on the grounds that the petitioner had overstayed his voluntary departure period and thus was statutorily barred from adjustment of status. The Court rejected the government’s argument that, in the Court’s words, “by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening.” The Court also rejected the petitioner’s argument that the voluntary departure period should be tolled while the motion to reopen is pending.
Please be aware of the following issues that immigration judges may encounter following the Supreme Court’s decision in Dada v. Mukasey.
Rejection of Automatic Tolling
• The Supreme Court in Dada resolved the circuit split regarding automatic tolling of voluntary departure upon the filing of a motion to reopen. Slip op. at 2.
• The Supreme Court rejected automatic tolling, and thus automatic tolling of the voluntary departure period upon the filing of a motion to reopen no longer exists in those circuits that formerly adhered to the practice.
• The issue currently remains open as to how to address cases where motions to reopen were pending at the time Dada was decided on June 16, 2008.
• In a case where voluntary departure was granted by the immigration judge yet is on appeal to the Board, jurisdiction rests with the Board. Accordingly, requests to withdraw voluntary departure are appropriately addressed to the Board.
• Courts will need to reject improperly filed requests to withdraw voluntary departure using the uniform rejection policy for lack of jurisdiction.
Form of the Filing / Coding
• The Dada decision was silent as to the format of the request to withdraw voluntary departure and whether that request must be filed simultaneously with a motion to reopen.
• Because Dada recognized the right of an alien to withdraw his or her voluntary departure agreement prior to its expiration, courts should accept independently filed requests to withdraw voluntary departure.
• Additionally, the requests are distinct from motions to reopen and thus should not be treated or coded in CASE as motions to reopen.
• Dada specified that an alien who withdraws his or her voluntary departure agreement is subject to the alternate order of removal. Slip op. at 18. The Supreme Court then stated that the alien could be removed within 90 days, and could request a stay of the removal order. Id.
• Notably, the Supreme Court asserted that a denial of a motion for a stay could be an abuse of discretion where non-frivolous grounds support the underlying motion to reopen. Slip op. at 19.
Voluntary Departure Bond
• The issue currently remains open regarding whether proof is required that the mandatory bond was indeed paid such that the alien has a valid voluntary departure agreement to withdraw.
Voluntary Departure Warnings
• The issue currently remains open regarding whether the voluntary departure warnings should be modified to provide the alien with notice of his or her right under Dada to withdraw voluntary departure in order to file a motion to reopen.